We welcome to the field of land and Rowell & Co's " American Newspaper Dimining law journalism, "Brainard's Legal rectory," which is now in press, it appears Precedents," the first number of which that the newspapers and periodicals of all 3 monthly publication appeared in March. kinds issued in the United States and TerIt is an 8vo., with 48 pages-40 pages be- ritories now reach the imposing total of ing reading matter-equal to nearly 17 11,196. This is an increase of 585 in twelve 4 pages of the LAND OWNER. The annual months. Nebraska's total grew from 175 subscription price is $2.00. M. D. Brainto 201, and Illinois' from 890 to 904. The ard, Editor, Washington, D. C. Send for most remarkable change has occurred in a sample copy.

laws.

PRACTICE.

14, 1880 (21 Stat., 140), and on the same It appears that the relinquishment of GRAVES & VINTON.. day one Andrew Smail filed his declara- Mennitz and the declaratory statement of Certificates-Local land officers have no author- tory statement, No. 6856, alleging settle- Ocovaa were not put on record at the ity to execute or charge for the certificates ment on that date as a pre-emptor. proper time, through the fault of the formentioned, and the issuing of such certifi- The application of Bones to contest, mer Register; and that on July 12, 1882, cates is contrary to the spirit of the land filed on the 23d of March, was endorsed, Conrad Mundelius entered contest against Inspection The public records, however, of the apparently in the handwriting of the Reg- the homestead entry, alleging abandonvarious land offices are, or should be, open to ister, as follows: "File subject to present ment thereof for a period of two years; the inspection of anybody, under proper reg-contest." Underneath this endorsement and that the land was vacant at date of the Receiver noted over his own signature contest. a formal rejection of the application, as follows: "March 23, 1882-Rejected because of pending contest to be heard on the 1st day of April, 1882, upon the same allegations contained in the within affidavit.

ulations.

SECRETARY TELLER to Commissioner Mc Farland, February 19, 1883.

Messrs. Graves & Vinton complain of your order of December 21, 1882, in which you direct the Register and Receiver at Huron, Dakota Territory, not to issue certificates to the effect that no adverse claim of record is pending, the same to be used by loan agents, who furnish money to settlers with which to pay the Government price, or for other purposes.

I concur in your view that the local land officers have no authority to execute or charge for the certificates mentioned, and I believe the issuing of such certificates to be contrary to the spirit of the land laws, inasmuch as they might be considered to create a right—or at least pass judgment upon the question whether or not a right had been established-under the law. It is one of those extra-official acts which, in my opinion, should not be permitted.

The public records, however, of the various land offices are, or should be, open to the inspection of anybody, under proper regulations.

You are directed to inform Messrs. Graves & Vinton that your order of December 21st meets with the approval of this department, but that they, or any other persons in good standing, will be permitted to examine the records of the local land offices, or take abstracts of the same, when needed for their business purposes, in such manner as not to interfere with the regular dispatch of the business

of the offices.

THOMAS A. BONES. Contest-Relinquishment.-Where a contest is ended by relinquishment, the land in question becomes public land subject to entry by the first rightful applicant. An application to contest, made after such relinquishment, should be dismissed. SECRETARY TELLER to Commissioner Mc Farland, March 7, 1883.

I have considered the appeal of Thomas A. Bones from your decision of May 18, 1882, declining to recognize his application, filed March 23, 1882, to be allowed to contest the homestead entry of John W. Callender, made September 3, 1880, upon N. E. 4, 2, 121, 56, Watertown District, Dakota, No. 3721.

No hearing was ordered. The first contest was closed on virtual confession of abandonment by the filing of the relinquishment on the 31st of March, and there was no longer any question as to Callender's homestead entry, and consequently there was no basis for further hearing.

Subsequently, the facts relative to the previous relinquishment of the homestead entry and the attempted filing of Ocovaa's declaratory statement were developed, and the declaratory statement was formally filed July 20, 1882.

On July 22, 1882, Mundelius, learning of the homestead relinquishment, filed his declaratory statement for the tract, alleg ing settlement July 12, 1882. At this point of the case the homestead entry was out of the way, and there were two pre-emption filings for the land, that of Ocovaa being earlier in point of time.

The land, instead of reverting to the On October 18, 1882, Ocovaa gave noUnited States by virtue of a declaration tice of her intention to make final proof. of forfeiture under Sec. 2297 of the Re- On the same date Mundelius entered convised Statutes, became public land, as be- test against said claim. By agreement of fore recited, under the act of May 14, 1880. parties the day for taking proof was postIt is manifest, therefore, that if a con- poned to October 27, 1882, at which date test fully initiated and fixed for a certain both parties appeared, and you proceeded day, was rendered unnecessary by the act to take the testimony of claimant, the diof relinquishment, any application to con- rect and cross-examination lasting two test, depending on the same facts and not days. yet made effective by notice and sum- You state that the testimony of claimmons, was so much the more removed ant was far from satisfactory, and that on from the necessity for inquiry, and was the morning of the 29th her attorney filed barred from any further notice. It results, a withdrawal of her application to make as of course, that no question as to the final proof. propriety of allowing a second contest after the institution of one proceeding re- of such withdrawal, viz.: "Whether the mains to be answered here, as the cancel- claimant by this procedure abandoned, lation upon the relinquishment left the surrendered, vacated or forfeited her claim land open, and any party who should ob- to the land, and so far defaulted in maintain legal priority as a settler after such taining her assured right to the land as cancellation, would be permitted to enter to debar her from again making applicain the manner required by law. If Bones tion to prove up, thus leaving contestant was such settler, he was bound to present in possession with the right of a first his claim by filing an entry within the claimant? or is she privileged to make legal period, subject to all prior rights, if two, three, or any number of applications any, of others who might also present and publications for final proof, and compel their claims. a contestant, until the end of the thirtythree months allowed a pre-emptor to prove up, to oppose a defaulting claimant ?"

The appeal is dismissed.

You ask for instructions as to the effect

MUNDELIUS vs. OcOVAA. You are advised that you are to make Contest Withdrawal.—The question at issue in up your decision upon the application to the first hearing cannot be again brought for- make proof in this case upon the testiward. The original claimant or any other mony taken, and in the same manner as if person may contest the succeeding claim on the application had not been withdrawn any other ground-for example, on the or attempted to be withdrawn; and if ground that the second party has not himself complied with the law; but the first party cannot again set up her own claim in opposition to the second application. COMMISSIONER MCFARLAND to Reg. and Rec., Tucson, Arizona, January 11, 1883.

your decision rejects the application, and such decision should become final, the contesting applicant will have the right to offer proof on his own behalf. The question at issue in the first hearing cannot be The facts in this case appear to be that again brought forward. The original the land in question was entered May 13, claimant or any other person may contest 1880, by D. H. Mennitz, who made final the succeeding claim on any other ground proof September 21, 1880, and relin--for example, on the ground that the On the 31st of March, Callender filed quished his claim October 12, 1880, and second party has not himself complied · his relinquishment, and thereupon the that Patria Ocovaa made declaratory with the law; but the first party cannot land became subject to disposal without statement for the land October 8, 1880, al- again set up her own claim in opposition further action, as provided by act of May leging settlement October 4, 1880. to the second application.

October 27, 1881, Edwin W. Smail applied to contest said entry, alleging abandonment, and hearing was set for the 19th December, and was continued at request of both parties to April 1, 1882.

1883.]

MINES AND MINERALS.

PLACER MINING CLAIMS.

ously appropriated or reserved, which is
not the fact in the present case.

If such a construction was given to the Ten Acre Lots.-The division of 40 acie tracts provisions of the act of 1872, under coninto 10 acre lots was authorized for the pur-sideration, they could in nearly every case pose of enabling the placer location to con- be disregarded and rendered ineffective Location.-It cannot be claimed that a location by the placer claimants.

form to the surveys.

of a narrow strip of land 12,000 feet long, The locations would be made so as to extending through three sections, conforms cover only the valuable lands, and leaving "as near as practicable" to the rectangular the adjoining tracts in such a condition subdivisions of the public surveys, unless the adjoining land had been previously appropri- and situation as to make it impossible in ated or reserved, which is not the fact in the many cases to dispose of them. present case. This office, in letter dated May 19, 1875, COMMISSIONER MCFARLAND to Reg. and Rec., to the surveyor-general of Montana Sacramento, Cal., January 16, 1883. (Copp's M. L., p. 115), says, after quoting the above mentioned provisions of the act of 1872, that "the location of a placer mine upon surveyed public land, made after May 10, 1872, should embrace legal subdivisions of the public lands, where the same can be done without interfering with the rights of other bona fide mineral, agricultural, or other claimants in the same tract."

The land was surveyed and the plats filed in the local office in the latter part of 1865. The location was made July 30, 1880, and covers the bed of Bear River for 12,000 feet, and a small quantity of surface ground along its banks.

The tract lies in Sections 12, 13, and 14, Tp. 15 N., R. 9 E. When the claim was surveyed, it was divided into two separate lots, containing 48 and 34 acres respectively, and the portion in Section 13 was omitted therefrom and from the application for patent, said section having been patented to the Central Pacific Railroad Company December 19, 1866, which was long prior to the mineral location.

2147

3

forth by the filing of certain papers in this office, said to be copies of papers formerly filed and rejected and filed again with the surveyor general of New Mexico, alleging the existence of a claim of title derived from the Spanish or Mexican governments

to the Santa Rita Mines in New Mexico. You were advised that said papers appeared to be duplicates of papers previously presented to the surveyor general, and which that officer had found not to contain any evidence of grant or title from either the Spanish or Mexican governments to the land or mines in question. There was therefore nothing before this office upon which any action could be taken in respect to such alleged claim.

You were also informed that as the land

appeared to be subject to entry under the mining laws of the United States, and as no legal objections were found to the pending mineral entries, the same would proceed to patent in usual course.

The letter of the 31st ult. was in reply to a request from you that the papers which had been filed in this office should be reported to Congress under the eighth section of the act of July 22, 1854.

The only construction of the language referred to which is consistent with the context of the act and the general intention of Congress, as expressed in the laws upon the same subject, is that the placer As the papers referred to contained locations upon the surveyed lands shall nothing which had not already been conconform to the public surveys in all cases, sidered by the surveyor-general, and nothThe first law authorizing the patenting except where this is rendered impossible ing that could be construed into the basis of placer claims was the act of July 9, 1870, by the previous appropriation or reserva- of a claim under the treaty provisions, which expressly states that the locations tion of a portion of the legal subdivision there being no evidence of the existence made thereunder shall conform to the of 10 acres upon which the claim is situ- of any claim of right or title in the alleged United States surveys. The act of May ated. grantor of your client, there was nothing to be sent to Congress, and your request was accordingly declined.

10, 1872, which is incorporated into sec- There appears to be another serious ob-
tion 2331, U. S. Revised Statutes, provides jection to the location. It covers the bed
among other things, that all placer mining of a large river for a long distance, and,
claims thereafter located upon surveyed should the applicant obtain his patent, he
lands "shall conform as near as practica- would acquire the right to and control
ble with the United States system of pub- over the water in that portion of the
lic land surveys, and the rectangular sub-stream lying within his claim. It has been
divisions of such surveys,****but the policy of the government to withhold
where placer claims cannot be conformed patents for water rights, and leave them to
to legal subdivisions, survey and plat shall be determined and protected by the local
be made as on unsurveyed lands***." courts. It was clearly not the intention of
There were many tracts of surveyed land Congress to allow a large river for two or
which could not be taken as placer claims three miles, with only a few feet of ground
so long as the locations had to conform to along its banks, to be patented as a placer
the public surveys, on account of the prior claim.
rights of other persons, especially lode
claimants, to portions of the legal subdivi-
sions embracing such tracts; and the pur-
pose of the provisions of the act of 1872,
above quoted, was evidently to enable
qualified parties to locate and obtain pat-
ents for the portions not previously ap-
propriated or reserved. The privilege
granted to lode claimants of taking their
surface ground without regard to the pub-
lic surveys, was never extended to placer
claimants.

The division of 40 acre tracts into 10 acre lots was authorized for the purpose of enabling the placer locations to conform to the surveys.

SANTA RITA MINES.

Appeal.-The right of appeal to the Secretary
is allowed to parties who are shown to have
some interest in a cause or matter properly
pending, and in which a decision has been
made.

Stranger.--If any other rule were adopted a stranger could at any time, by the bare allegation of a claim to a tract of land, appear and demand all the rights and privileges of a party to any suit which might be pending involving the title of such land. COMMISSIONER MCFARLAND to Ford and Brainard, Washington, D. C., February 13, 1883. I am in receipt of your letter of the 6th instant, in the form of notice of an appeal It cannot be claimed that a location of from my action in reference to the matter a narrow strip of land 12,000 feet long, of certain mining claims, touching which extending through three sections, conforms you were advised of the position of this as near as practicable" to the rectangular subdivisions of the public surveys, unless the adjoining land had been previ

66

office by letters dated respectively January
20 and 31, 1883.

The letter of the 20th ultimo was called

You now desire to appeal to the Hon. Secretary of the Interior, and you lay before me certain propositions as specifications of error, to wit:

1. Alleged error in assuming jurisdic tion in this case contrary to the provisions of the act of Congress of July 22, 1854.

2. Alleged error in refusing to lay before Congress the decision of the Surveyor General of New Mexico, dated July 6, 1882, in regard to said private land claim, as rerequired by said act.

3. Alleged error in refusing to reserve from sale or disposal the lands embraced by said private land claim until final action thereon as provided by said act.

4. Alleged error in holding that there is no Santa Rita del Cobre private land claim before this office which could be sent to Congress under section eight of the act named, "inasmuch as Congress alone has power to determine this question.'

You are advised that the question before this office, and of which I have assumed jurisdiction, is the question of the rights of certain mineral claimants under the mining laws of the United States.

No adverse claim was filed in these cases during the period of publication, and no reason has since been shown to me why the usual course of mineral adjudication should be suspended or delayed, and I have so informed you.

The right of appeal to the Secretary is allowed to parties who are shown to have

some interest in a cause or matter properly pending, and in which a decision has been made.

A claim cannot be set up by mere assertion. A person who has not shown some evidence of a claim can have no standing as a party to a case before this office.

of a party to any suit which might be pending, involving the title of such land.

Commissioner MCFARLAND to Reg. and Rec.,

Mitchell, Dak., March 8, 1883.
Section 2309 R. S. provides that the
claimant shall in person, within six

to contest Thomason's entry and to make homestead entry for the N. E of section 27, under the provisions of the third section of the act of May 14, 1880, which provides, "That any person who has settled, or shall hereafter settle on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same

the same time to file his homestead appliunder the homestead laws, shall be allowed

If any other rule were adopted, a stranger could at any time, by the bare allegation of a claim to a tract of land, appear and demand all the rights and privileges months from the date of his Hd. D. S. cation, and perfect his original entry in the United States land office, as is now almake his actual entry of the land, com-lowed to settlers under the pre-emption For the same reasons it is provided by thereon, and thereafter fulfill all the remence settlement and improvements laws to put their claims on record, and his right shall relate back to the date of setorder can be applied for to have proceed-quirements of the law. tlement the same as if he settled under ings certified up to the Secretary, only by uncertainty as to what the statute rethe pre-emption laws." quires. The party must settle upon and a party to a case. Your client, Mr. Hays, has not made commence improving his claim within six himself a party to the case now pending months from date of his Hd. D. S. Failin this office, involving the Santa Rita ing to do this, his entry is subject to contest. Department Circular dated Decem

Rule 83 of the Rules of Practice that an

mineral entries.

The previous correspondence addressed to you by this office, and to which exception is now taken by you, consisted merely of letters of advice informing you, as a matter of official courtesy, of the status of the mineral entries. Information

so given does not constitute an appealable decision. Mr. Hays is not before this office as an appellant showing an affirmative right in his own behalf, nor as a protestant alleging failure of the mineral claimant to comply with the law.

There is no

MCCLUSKEY VS. THOMASON.

Act of May 14, 1880.-A pre-emptor having
failed to make due proof and payment, offered
to make homestead entry of the same tract.
Notwithstanding a prior homestead entry
thereon, he will be allowed to make home-
stead entry in view of the act of May 14,

1880.

SECRETARY TELLER to Commissioner McFar-
land, February 16, 1883.

I have considered the case of Isaac Mc-
Cluskey vs. Wm. P. Thomason, involving
the N. of N. E., the S. W. of N. E. 4,
and the S. E. of N. W. 4 of Sec. 27, Tp.
27, Range 3, Ironton, Missouri, on appeal
by McCluskey from your decision of Jan-
uary 21, 1882, dismissing the contest.

The record shows that McCluskey filed pre-emption declaratory statement, October 16th, alleging settlement September 12, 1877, for the E. of the N. E., the S. W.

The contest was ordered, but McCluskey's application to enter the tract was rejected by reason of Thomason's entry.

The testimony shows that (his right under his pre-emption filing having expired) McCluskey was resident on the land November 5, 1880, the date of cancellation of Neel's entry, intending to claim it under the homestead laws. Prior to that cancellation the tract was under appropriation; but upon that event McCluskey had the same right a pre-emptor would have had under the pre-emption laws, and he was authorized to enter it within three months from the time it became subject to further appropriation. Being a settler on the tract November 5, no further act of settlement was necessary, and his application of December 4th being within the time a pre-emptor would be required to make a filing under a like settlement, should be allowed. He is, however, required to make his entry within sixty days from notice hereof, otherwise the entry of Thomason will be allowed to stand. On McCluskey's entry, that of Thomason will be cancelled. Your decision is modified accordingly.

GILMAN VS. NOLAN,

Intention Atherton-Fowler Decision.- Gilman entered upon the land with the bona fide intent to appropriate the same under the homestead laws. He was protected by the principles of the Atherton-Fowler decision against the surprise of an adverse entry having no foundation in any settlement right. COMMISSIONER MCFARLAND to Reg. and Rec.,

It may be proper for me here to say for your information that the adoption of any different rule, upon the assumption that such course is required or authorized in carrying out the provisions of the eighth section of the act of 1854, would be in my judgment to impute to that statute an intention that the whole public domain within the Territories of New Mexico and Arizona may be placed in reservation at the will or instance of any person or persons who might chance to assert a claim by mere allegation unsupported by evidence of grant or muniment of title from former sovereignties-a result repugnant to public policy and destructive of public and private rights. I do not think the act of 1854 susceptible of such interpretation. Congress has unquestionably the power, and the sole power, to determine the validity or invalidity of claims arising under treaty stipulations with Mexico; and all Pueblo, Colorado, Feb. 8, 1883. J. W. L. claims, whether adjudged by the surveyor I have considered the case of Henry S. general to be valid or invalid, must be Gilman vs. Kavan. Nolan, involving the S. presented to Congress for final action; but N. E., and S. N. W. 4, Sec. 24, Twp. such submission, with its accompaniment On this record, it also appearing that 23 S., R. 43 W., on appeal from your deof a statutory reservation of the land McCluskey failed to make proof and pay-cision in favor of contestant. claimed, is restricted by the terms of the ment within the time required by law, act to claims cognizable under the laws, whereby in the presence of an adverse customs, and usages of Spain and Mexico. claim, his pre-emption right expired, the It can hardly be supposed that imaginary land became subject to Thomason's entry claims, not so cognizable, or claims unsup- upon cancellation of Neel's entry, and in ported by some evidence of grant or title the absence of any other question his from the former governments, can possess entry should be sustained. sufficient dignity to authorize their submission to Congress, or to work a legal reservation of public lands of the United States.

of N. E. 4, the S. E. of N. W. of said section; that one Neel made homestead entry, October 13, 1879, for the N. of N. E. 4, and the S. W. of N. E. of the same section, which entry was cancelled on the local records November 5, 1880, on his relinquishment thereof, and that Thomason made homestead entry November 5, 1880, of the tracts in dispute.

It appears, however, that on December 4, 1880, McCluskey-alleging his own residence on and improvement of the land covered by Thomason's entry, applied

Two hearings have been had in this case, the first on October 27, 1879, and the second on April 7, 1881.

It appears that Thomas B. Nolan formerly made homestead entry of this land, which he used for the purpose of a sheep ranch, having a house thereon for the accommodation of his herders, and that his brother Kavan Nolan was employed by him as foreman in charge of this ranch.

Gilman made settlement on the land in

The contest was brought to determine pre-emption filing and the H. E. based which of the two parties had the better thereon should not be cancelled. right of entry. It is competent in such a The testimony shows that Brooks had proceeding to attack the validity of an op- filed a former D. S. in the San Francisco posing entry on any ground upon which it office, June 19, 1877, for a tract of land may be liable to attack. Inceptive fraud, described on the records of that office. non-compliance with law, or abandonment, For the reason, as he alleges, that he had may be shown against either party, as well filed a written abandonment of said tract, as an affirmative right set up by either he was under the impression that he could party. And fraud, illegality, or abandon- file a second time for other land. Consement, are matters of which this office may quently, he filed on the tract embraced in at any time take cognizance on behalf of his present homestead entry, and made the United States, whatever the effect may very valuable improvements thereon. be in respect to individuals, whether contestants or otherwise.